Contesting a will against the deceased isn’t as simple as it sounds. It is not easy to go to the court, but one has to fight for what is right. The legal experts recommend initiating the procedure as early as possible since the time fixed by the Supreme Court of Victoria for such procedures is six months from the date of the issue of Probate.
Now that you are moving forward with this, read the various steps involved in will contesting:
Choose a Lawyer
The first thing you must decide is the lawyer for contesting a will. You can be at peace with yourself only when you know you are in the hands of an expert who has a reputation to match with. On the contrary, if you hire an inexperienced one, failure is inevitable.
Contesting a Will Victoria: The Investigation Stage
Foremost, you must have a copy of the Will, full account of the assets and the liabilities of the estate and whether or not the executor has applied for the Probate or is already granted.
The most crucial aspect is to be aware of what is included in the estate? What is worth of the estate? What about the property and the shares? Does he have superannuation? Has he left behind any debts? Has the executor applied for Probate? What is its status?
Collecting accurate and relevant information is vital. The information collected should specify your legal right to contest a will. Falling in collating the information can result in failure.
In legal terms, it is referred to as the Investigation Stage. It includes making an enquiry letter for the executor and asking for information about the several facets of the estate. A question is often included in the letter to know whether the person is keen on meeting for an early settlement. After establishing your claim and knowing that there are no offers for settlement received, move to the next step.
Obtain a Written Statement For Will Contesting
An affidavit or a written document is prepared at this stage. It contains your relationship history with the departed soul along with the detail of your health and the financial position, your spouse’s health and the dependents if any.
Initiate the Court Proceedings
Once the statement is prepared, you are all set to make a Family Provision Claim. A summon is filed. A summon is a document that urges that you are going to make a claim. Once this is done, the court opens up a file followed by marking a date on the calendar, of the month once summon is filed. This date on the calendar is referred to as directions hearing.
Get a Mediation Date
Directions’ hearing is not real hearing. It is the day when the judge takes the court file and formally asks the lawyers if they have any queries before announcing the mediation date. The judge elaborates the things he expects of the lawyers to ensure the case can go for mediation.
It is yet another attempt you can make to settle the claim before going for the mediation. It can be initiated by any of the parties’ involved in will contesting. An equal amount of disputes get settled before the court proceedings.
It is a little tricky. You have no idea what evidence is held by the other party against your claim to contest a will. The other party could be dishonest. Nevertheless, you can give it a try if you want to save money.
Generally, a majority of the cases get settled at this stage of will contesting. You will be accompanied by your barrister and solicitor, the executor and his or her barrister and solicitor in addition to the officer of the court into the mediation room. The lawyers will do most of the talking.
Another method to resolve the matter is agreement. It is when you and the other side involved resolves by making some acceptable offers. As an example, the executor may offer you a sum and surrender the claim. Henceforth, if you accept the offer, a contract is made so that you get the amount you have agreed upon. The agreement implies that you will receive the provision before moving the court.
If nothing works out during the mediation and at the negotiation table, then the last resort is the court hearing.
Remember. It is the last stop in contesting a will. Have patience as it can take days to months to years.
After learning the procedure, you must not waste time in contesting a will now!